Fresh & Easy Neighborhood Market, Inc.

National Labor Relations Board - Administrative Judge Opinions

Feb 17, 2010

28-CA-022520 (N.L.R.B. Feb. 17, 2010)

JD(SF)-06-10
Las Vegas, NV
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
SAN FRANCISCO BRANCH OFFICE
DIVISION OF JUDGES
FRESH & EASY NEIGHBORHOOD MARKET INC.
and Cases 28-CA-22520
28-CA-22521
28-CA-22670
28-CA-22692
UNITED FOOD AND COMMERCIAL WORKERS
INTERNATIONAL UNION
and Case 28-CA-22675
DEANA KENTON, an Individual
Joel C. Schochet, Esq., Las Vegas, NV, for
the General Counsel.
Stuart Newman, Esq., Atlanta, GA, and Molly Eastman, Esq.,
Chicago, IL, for the Respondent.
David A. Rosenfeld, Esq., Alameda, CA, for the Union.1
DECISION
Statement of the Case
Gregory Z. Meyerson, Administrative Law Judge. Pursuant to notice, I heard this
case in Las Vegas, Nevada, on November 17 and 18, 2009. This case was tried following the
issuance of a Second Consolidated Complaint and Notice of Hearing (the complaint) by the
Acting Regional Director for Region 28 of the National Labor Relations Board (the Board) on
October 9, 2009. The complaint was based on a number of unfair labor practice charges, as
captioned above, filed respectively by the United Food and Commercial Workers International
Union (the Union) and by Deana Kenton (Kenton), an individual. It alleges that Fresh & Easy
Neighborhood Market, Inc., (the Employer or the Respondent) violated Sections 8(a)(1), (3), and
(4) of the National Labor Relations Act (the Act). The Respondent filed a timely answer to the
complaint denying the commission of the alleged unfair labor practices.2

1 Counsel for the Union did not appear at the hearing, but did file a post-hearing brief.
2 In its answer to the complaint, the Respondent admits the various dates on which the
enumerated charges were filed by the Union and Kenton, respectively, and served on the
Respondent as alleged in the complaint.
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Counsel for the General Counsel and counsel for the Respondent appeared at the
hearing, and I provided them with the full opportunity to participate, to introduce relevant
evidence, to examine and cross-examine witnesses, and to argue orally and file briefs. Based
on the record, my consideration of the briefs filed by counsel for the General Counsel, counsel
for the Respondent, and counsel for the Union, and my observation of the demeanor of the
witnesses,3 I now make the following findings of fact and conclusions of law.
Findings of Fact
I. Jurisdiction
The complaint alleges, the answer admits, and I find that the Respondent, a Delaware
corporation, with offices and places of business in Las Vegas, Nevada, herein called the
Respondent’s Las Vegas, Nevada stores, has been engaged in the retail sale of groceries,
meats, and related products. Further, I find that during the 12-month period ending May 15,
2009, the Respondent, in conducting its business operations as just described, derived gross
revenues in excess of $500,000; and during the same period of time, also purchased and
received at its Las Vegas, Nevada stores goods valued in excess of $50,000 directly from points
located outside the State of Nevada.
Accordingly, I conclude that the Respondent is now, and at all times material herein has
been, and employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of
the Act.
II. Labor Organization
The complaint alleges, the answer admits, and I find that at all times material herein, the
Union has been a labor organization within the meaning of Section 2(5) of the Act.
III. Alleged Unfair Labor Practices
A. The Issues
The complaint alleges that the Respondent violated Section 8(a)(1) of the Act by
promulgating and maintaining an unlawful no-distribution policy, by interrogating its employees
about their union activities and sympathies, by creating an impression among its employees that
their union activities were under surveillance, and by soliciting employee complaints and
grievances and promising to improve terms and conditions of employment if the employees
refrained from union organizational activities. Further, it is alleged that the Respondent violated
Section 8(a)(3) of the Act by discharging its employees Tamara Williams (Williams) and Deana
Kenton (Kenton) because of their support for the Union, and also violated Section 8(a)(4) of the
Act by discharging Kenton because she cooperated with the Board in the investigation of unfair
labor practices charges filed against the Respondent.

3 The credibility resolutions made in this decision are based on a review of the testimonial
record and exhibits, with consideration given for reasonable probability and the demeanor of the
witnesses. See NLRB v. Walton Manufacturing Company, 369 US 404, 408 (1962). Where
witnesses have testified in contradiction to the findings herein, I have discredited their
testimony, as either being in conflict with credited documentary or testimonial evidence, or
because it was inherently incredible and unworthy of belief.
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The Respondent denies the commission of any unfair labor practices. It takes the
position that while its no-distribution policy as originally worded was not unlawful, it
subsequently took affirmative remedial action to correct a wording “mistake” by issuing a new
rule to thereby resolve any possible misunderstanding of the policy. Further, the Respondent
argues that its stores operate under an “open door” policy, with managers acting affirmatively to
solicit employee complaints and then aggressively seeking to remedy those grievances if
warranted. It is claimed that this policy pre-dates and is unrelated to the union organizational
campaign. This policy is referred to by the Respondent under the terms “Team-Huddle” and
“Temperature Check.” The Respondent denies any effort to engage in surveillance of its
employees’ union activity, and contends that it did nothing more than attempt to address
employee complaints when employees complained to its managers regarding harassing visits to
their homes by union organizers.
Regarding employees Williams and Kenton, the Respondent contends that they were
terminated for cause, specifically for violating its absentee policy and practice. It is alleged that
these employees failed to appear for their scheduled work shifts or to call into their stores each
day to explain their absences, for three or more consecutive shifts, referred to as “no-show/ no-
call,” and were therefore terminated. The Respondent denies that the terminations of Williams
and Kenton were in any way related to their union activity, or that the termination of Kenton was
in any way related to her cooperation with the Board.
B. The Facts
The Respondent operates a chain of supermarkets located in Nevada, Arizona, and
California. The principal store involved in this proceeding is store number 1247, located in Las
Vegas, Nevada. Both Williams and Kenton were originally employed at that store, under the
supervision of store manager Barbara Shaw.
Nahal Yousefian-Abyaneh (Yousefian) is the Respondent’s Director of Employee
Relations. She is the head of the Respondent’s group of Employee Relations Managers. In
that capacity, 9 employees report to her, including Andrew Taylor, an Employee Relations
Manager who has the human resource responsibility for the Las Vegas area stores, including
store number 1247.4 Yousefian testified that she first became aware that the Union was
attempting to organize the Las Vegas area stores about April of 2009 5 when she learned that
the Union was contacting certain Las Vegas based employees at their homes. According to
Yousefian, one of her team managers learned that a number of these employees were “upset or
concerned” about these home visits.
Jonathan English, a store manager trainee, and Beatrice English (English), a store team
lead, who are husband and wife, testified that they were contacted at home by a union
representative in late March, and that they were very unhappy with being contacted at home.
According to English, she reported the incident and her unhappiness to her store manager,
Olympia Nauman, who suggested that English write a letter of complaint to the Union. The
letter was signed by both husband and wife and expressed their unhappiness with being
“harassed” at home, and extreme concern with how the Union had obtained their home address.
(G.C. Ex. 10.) At Nauman’s request, English gave the letter to her for mailing. English testified
that she did not feel pressured to write the letter, and knows of other employees who have
written similar letters.

4 The Respondent’s Office of Employee Relations is located in California.
5 All dates are in 2009 unless otherwise indicated.
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Employee Wendy Van Loo testified about an “unwelcome” home visit that she received
from union representatives in mid-March. She complained to her store manager, Jamie Lamb,
about the incident, and asked him what she could do about it. Lamb suggested that she write a
letter of complaint to both the Union and the Respondent’s legal department. According to Loo,
she did so, subsequently mailing both letters herself. Further, at the trial, counsel for the
General Counsel introduced two other employee letters of complaint regarding the visits by
union representatives to the these employees’ homes, one from an employee signing the letter
as “Brenda” (G.C. Ex. 13.), and one from an anonymous “concerned” employee. (G.C. Ex. 12.)
Union organizer Megan Pierce (Pierce) testified that the local union in Las Vegas, Local
No. 711, received a number of letters of complaint from the Respondent’s employees regarding
home visits, mailed to the Local. Counsel for the General Counsel introduced into evidence a
number of envelopes addressed to the Local that Pierce testified had contained these letters of
complaint. (G.C. Ex. 11.) 6
The Respondent has maintained an employee no-distribution policy effective from 2006
until September 2, 2009. The “short form” version of that policy, distributed by the Respondent
to employees in the employee handbook, stated in part as follows: “We also prohibit the
distribution of literature during working time or on Company premises for any purpose.” (G.C.
Ex. 2.) (emphasis added by the undersigned.) During the same period of time, a “long version”
of the no-distribution policy was available to employees on the company intranet.7 It too
contained the same language, specifically that the “[Employer] also prohibits the distribution of
literature during working time or on Company premises for any purpose.” (G.C. Ex. 3.)
(emphasis added by the undersigned.)
However, according to Employee Relations Director Yousefian, “There were a few
phrases from the policy that needed clarification, that we changed.…We believed that the
phrases, or the language, was too broad and so we needed to clarify it for employees.” The
change was made on September 3, 2009, and as is reflected in both the short and long form
was revised as follows: “We also prohibit the distribution of literature during working time or at
any time in a work area for any purpose.” ( Res. Ex. 8, & G.C. Ex. 4.) (emphasis added by the
undersigned.) According to Yousefian, to implement and distribute the revised policy, the
Respondent conducted “team huddles” at each of it stores, the revised short form policy was
posted in each store, the intranet language was changed, and the employee handbook was
modified accordingly. No evidence was offered to rebut the Respondent’s assertion that on
September 3 the no-distribution language was changed as testified to by Yousefian.

6 Counsel for the General Counsel argued at trial that the addresses on the face of these
envelopes are all in the same handwriting, and, he further alleged that the return addresses are
also all in the same handwriting, and they are returnable to the Respondent’s office in California.
Although he did not specifically say so, presumably he wants me to take administrative notice of
this contention. However, I hereby specifically decline to do so, as such disputed issues are
inappropriate for administrative notice. While counsel argued that this constitutes evidence of
assistance by the Respondent to anti-union employees, there is certainly no such allegation in
the complaint. Further, this alleged assistance is unsubstantiated, and is based on the mere
assertion of counsel, not evidence, and is woefully inadequate to establish animus towards the
Union.
7 The Respondent’s employee handbook contains the “short form” version of many of its
policies. The Respondent’s intranet site contains both the short and the “long version” of those
policies, including the no-distribution rule.
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Michelle Sumner was an employee in store number 1247. She testified that around
March or April, she was approached by store manager Shaw who told her that, “[E]veryone is
writing a statement about the union harassment, and you need to write yours, because
everyone has already written theirs.” Apparently, this was related to the complaints made by a
number of employees who were unhappy with the home visits by union organizers. However,
Sumner did not respond to Shaw’s request and never wrote such a statement. Further, she
testified that Shaw never mentioned the Union to her again. This conversation occurred on the
sales floor. Sumner testified that she was comfortable going to Shaw, who was her supervisor,
about anything, including complaints.
While Sumner did not indicate the presence of any other employees, Catherine Everhart,
a customer assistant at the same store, testified that she was present during the conversation
with Shaw. According to Everhart, Shaw, who was also her supervisor, asked both employees
to “write statements because one of the employees was harassed by the Union.” In response,
Everhart told Shaw that she was not writing a statement, which comment allegedly elicited a
“funny” look from Shaw. However, when pressed by the undersigned, Everhart changed her
testimony somewhat, adding that Shaw started the conversation by asking, “Has anybody talked
to the Union.” In any event, Shaw was not called as a witness during the hearing, and, so, the
testimony of Sumner and Everhart remain unrebutted.
Further regarding Everhart, on June 15, she, Tamara Williams, and employee Lester
Bosiah signed a letter addressed to Tim Mason, the Respondent’s CEO. The intention was to
present Mason with this letter when he visited the store those employees worked at in Las
Vegas. In fact, the letter was ultimately presented to a different management representative.
The letter, in summary, requested that the Respondent remain neutral during the union
organizing campaign, so that the employees might be able to make a free choice about union
representation without “interference and undue influence” from the Employer. (Res. Ex. 1.) At
the time of the hearing, Everhart and Bosiah were still employed by the Respondent, Williams
having been discharged.
The Respondent is a relatively new corporate entity, created in 2006, with retail
operations commencing in November of 2007. Store 1247 in Las Vegas opened in September
of 2008. Barbara Shaw was the store manager from the opening until July of 2009, when Bob
Megrew succeeded her. Kevin Parker has been the District Manager over store 1247 and
others in Las Vegas. Andrew Taylor has been store 1247’s Employee Relations Manager since
late 2008. He has the same responsibility, as well, for other Las Vegas area stores. Paula
Agwu has been an Employee Relations Manager since January of 2008, responsible for, among
other things, training new Employee Relations Managers. Both Agwu and Taylor report directly
to the Employer’s Director of Employee Relations, Nahal Yousefian.
Yousefian testified at length about the Employer’s open door policy and its efforts to
check in regularly at its various stores to determine how things are going. The written job
description of the Employee Relations Manager stresses that the manager is to be “an
advocate” for the employees, visiting the stores regularly to “check the pulse” and “see how
things are going.” (Res. Ex. 5.) According to Yousefian, 50% of the job duties of an Employee
Relations Manager consist of going out and “soliciting” employee problems, issues, and
concerns, and “helping resolve them.” She referred to this conduct as “temperature checks.”
Yousefian described this hands on approach where Employee Relations Managers go
into stores and “talk to employees, work shoulder-to-shoulder with them.” The managers are
expected to ask, “[H]ow is everything going,” and to ask whether the employees “have any
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issues, problems, concerns.” It is expected that in response the employees may raise any work
related issues, including pay and fair treatment. Further, and most significant, the managers are
expected to directly remedy many grievances.
According to Yousefian, upon visiting a store, if the manager learns of a minor issue or
concern that can be resolved “right then and there,” the manager is expected to just resolve it.
Where the issue is more complex, involves a number of employees, or perhaps the entire store,
the manager is expected to give Yousefian a report. Further, the Employee Relations Manager
is expected to “partner up” with the District Manager for that particular store and then together
assemble a plan to address the issue raised by the employees.
Additionally, when visiting a store, the management team, including the store manager,
the District Manager, and the Employee Relations Manager may engage the employees in a
group discussion of those issues of concern to the employees. This collective approach to
problem solving is referred to as the “team-huddle policy.” Yousefian testified that this open
door, hands on approach to problem solving has been actively used by the Employer with its
employees since the first store was opened, and continues to be utilized to date.
The record evidence establishes that Taylor first visited store 1247 no later than
December 12, 2008, and during that visit he discussed with the employees issues of concern to
them. Further, the evidence indicates that Taylor attempted to immediately resolve those
concerns, which included security, inadequate staffing, and benefits information. (Res. Ex. 51.)
Yousefian testified that Taylor has continued to conduct such visits to those stores that he is
responsible for, including store 1247, for the entire period of time of his employment, through
the date of the hearing. She reiterated that such visits and “temperature checks” constituted a
significant part of his job duties as an Employee Relations Manager. This visit apparently pre-
dated the union organizing campaign at the store.
On April 24, 2009, Sheritha Grose, a team lead at store 1247, sent an email with an
attached written statement to the Respondent’s Employee Relations Department raising
concerns about a scheduling issue that she had with store manager Shaw. This complaint
involved a number of employees including Grose. (Res. Ex. 10.) Yousefian testified that in
response, the store was visited by Taylor and Agwu. It is the Respondent’s contention that this
visit by the two Employee Relations Managers was a “temperature check” related to Grose’s
complaint, and totally unrelated to the union organizing campaign, or to the union activity of any
of the employees who worked at the store.
Customer assistant Catherine Everhart testified that in April she met Taylor and Agwu
when they first entered store 1247. According to Everhart, Taylor and Agwu introduced
themselves, and asked her “if everything was okay, and if [she] had any issues.” She
responded that she was “okay,” to which Taylor asked, “Just okay?” Agwu asked if there was
anything that they could do to “fix” things. Everhart allegedly responded that “there were some
issues with hours for lunches.” Both Taylor and Agwu responded that they could “fix it.” Then,
according to Everhart, she was asked how she felt about the people that she worked with, to
which she responded that she liked them. The conversation then ended as she became busy
bagging groceries. Everhart testified that there was no mention of the Union during this
conversation.
Later in the day, Taylor and Agwu held a meeting for employees in the store stockroom.
Besides Everhart, also present for the meeting were District Manager Kevin Parker, a number of
team leads, and other customer assistants. Shaw was apparently not present, as she went to
service customers at the front of the store. According to Everhart, Agwu started the meeting by
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saying that “they were there for us.” Further, Agwu allegedly told the assembled employees
that they knew that “there were issues in the store.” However, Agwu did not say what those
issues were, other than they were “private.” Everhart thinks that Parker “might have said
something” about the “issues in the store” being “resolved after investigation.” Other than that,
Everhart could not recall anything else that was said at the meeting.
During cross-examination by counsel for the Respondent, Everhart acknowledged that
she believed the reason that Taylor and Agwu came to the store in April was because Sheritha
Grose had some issues with store manager Shaw, and Grose had contacted employee relations
to complain. As Agwu and Parker did not testify at the hearing, and Taylor, who did testify, did
not discuss his visit to store 1247, Everhart’s testimony remains unrebutted.
The Respondent maintains a written attendance policy, both short-form (Res. Ex. 2.) and
long-form (G.C. Ex. 7.) The long-form attendance policy states in part: “Additionally, if you don’t
show up for work on three consecutive scheduled days, and we haven’t heard from you, we’ll
consider you to have abandoned your job and resigned.” The short-form attendance policy says
in part essentially the same thing: “And if you don’t show up without calling in for work on three
consecutive scheduled workdays, we’ll consider you to have abandoned your job and resigned.”
The Respondent’s managers refer to this portion of its attendance policy as “no-show/no-call.”
However, the General Counsel and the Respondent disagree as to the meaning of the
“no show/ no call” portion of the attendance policy. Counsel for the General Counsel argues
that the literal reading of those provisions clearly shows that an absent employee need only call
into his store once every three days. The General Counsel argues in his post-hearing brief that
the language from the long-form attendance policy, specifically that “if you don’t show up for
work on three consecutive scheduled days and we haven’t heard from you, we will consider you
to have abandoned your job and resigned,” implies that a single contact would be sufficient.
Further, counsel argues that consecutive days missed for the same reason should only count as
one absence. In support of its argument, counsel cites page 2 of the long-form attendance
policy where in part it states: “Consecutive days missed due to the same or related illness, injury
or personal situation are considered recurring and will count as one absence.” (G.C. Ex. 7, p. 2.)
When testifying, Yousefian admitted that the policy “doesn’t stipulate in this [long-form]
version” that employees are required to call in each day they are absent. However, the
Respondent, through Yousefian and Taylor, insisted that in applying its attendance policy, its
normal practice has been to terminate the employment of an employee who misses three or
more consecutive shifts without calling in before each shift. Yousefian testified that when
employees first start work, the requirement that they call in for each day they have an
unscheduled absence is communicated to them by management. However, even though the
employees are forewarned when hired, Taylor testified that before terminating a no-show/no-call
employee for job abandonment, an effort is made to “try to reach out to them to establish the
reasons for the absence,” by calling the individual employee or an emergency contact number.
In an effort to demonstrate its normal practice concerning the termination of employees
for job abandonment, the Respondent introduced termination documents for 31 employees who
had been employed in its Nevada stores. (Res. Ex. 11, 12, 13, 14, 15, 16, 17, 18, 19, 21, 22,
23, 25, 26, 27, 28, 29, 30, 32, 34, 35, 37, 38, 39, 40, 43, 44, 45, 46, 47, 48, 49, and 50.) Of
those 31 employees who were terminated for job abandonment, 13 were specifically fired for
no-show/no-call violations. (Res. Ex. 11, 17, 18, 23, 25, 26, 30, 34, 43, 44, 46, 48, and 49.)
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Further, according to Yousefian’s testimony, two former employees, David Sexton 8 and
Anthony Tienda, were terminated under the Respondent’s attendance policy because of jail-
related absences. (Res. Ex. 34 and 39.) This is significant because, as will be discussed in
detail below, both Deana Kenton and Tamara Williams were absent from work due to
incarceration in the county jail.
Counsel for the General Counsel in cross-examining Yousefian was able to demonstrate
certain book keeping, payroll, recording, and processing errors for some of the employees who
were terminated for job abandonment. However, for the most part, the records demonstrate
that the Respondent has a normal procedure that it follows in terminating employees for job
abandonment and, in particular, for no-show/no-call absences. That procedure results in the
termination of an employee who fails to call in for each and every shift where there are three or
more consecutive absences.9 In his post-hearing brief, counsel for the General Counsel did not
make a serious attempt to demonstrate that such a policy and practice, as supported by the
voluminous termination documents, was not in effect.
Tamara Williams was hired as a customer assistant at store number 1247 on
September 8, 2008. As noted earlier, Williams, Catherine Everhart, and Lester Bosiah all
signed a paper dated June 15, 2009, and addressed to the Respondent’s CEO, Tim Mason,
which requested that the Respondent remain neutral during the Union’s organizing campaign.
(Res. Ex. 1.) This letter was ultimately presented to one of the Respondent’s managers at the
store where Williams worked.
The North Las Vegas Police arrested Williams at a park in the early morning hours of
June 24, 2009. According to Williams, she was informed by the police that there was an
outstanding warrant for her arrest for failure to pay a $400 ticket she had received five years
earlier, when she was 17.10 From jail she called Erica Vidal, the team lead at her store. She
asked Vidal to lend her $400, which Vidal declined to do. Williams next asked Vidal to tell the
store manager, Bob Megrew, that she would be in jail for a few days, and Vidal agreed to do so.
Williams was incarcerated for ten days, during which time she did not attempt to again
contact store 1247. While initially testifying that she could not call the store from jail, on cross-
examination she acknowledged that she did have the ability to make collect telephone calls from
jail. Because of her incarceration, Williams was unable to report for her scheduled work shifts
on June 25, 27, 28, and July 1, 2009. (G.C. Ex. 5.) Following her call to Vidal on June 24, she
did not thereafter make any attempt to contact the store prior to her next four shifts.11
When Williams was released from jail on July 3, she went home and called store
manager Megrew. She asked him whether she still had a job, to which he responded,
“Unfortunately not.” Later that day, she received a termination letter dated July 2 and signed by
Taylor, which stated that she had been terminated for “job abandonment.” (G.C. Ex. 8.)

8 Although Sexton was subsequently rehired, Yousefian testified that this was a mistake due
to the Regional Manager’s failure to follow correct procedures during a mass hiring.
9 Of the 13 no-show/no-call terminations, three were ambiguous as to the number of shifts
missed where the employee failed to call in. (Res. Ex. 18, 43, and 49.)
10 Williams testified that she had received the ticket because she had remained on a bus for
a distance beyond that for which she had paid.
11 Apparently, Williams was scheduled to work a shift on June 24, however, since she called
Vidal prior to the start of that shift, the Respondent did not consider her absence on that date to
constitute a no-show/no-call absence.
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Taylor testified that District Manager Kelvin Parker made the ultimate decision to
terminate Williams after receiving advice from the store manager where Williams worked and
from Taylor himself. On July 1, the store manager-in-training at store 1247, Vanessa Retchless,
sent an email to Taylor, advising him of the situation with Williams, specifically that she had
missed her scheduled shifts since June 25 with no contact from her to the store. Further,
Retchless advised that she had tried without success to call Williams. (G.C. Ex. 5.)
Taylor in turn sent an email to his boss, Yousefian, explaining the Williams situation,
specifically that Williams had missed four shifts without contacting the store prior to the shifts.
According to Taylor, he had not been able to reach her by phone, and no emergency contact
number was available. He recommended that she be terminated. (G.C. Ex. 5.) Yousefian
agreed with Taylor’s recommendation, and Taylor forward the recommendation on to Parker
and store Manager Megrew. As noted above, it was Taylor who actually signed the letter of
termination sent to Williams.
Deana Kenton was hired as a customer assistant at store 1247 on September 8, 2008.
In December of 2008, Kenton was notified that she had been admitted to the Respondent’s
“Options Program,” which seeks to prepare employees, who have applied, to move into
management positions, such as team leads. According to Kenton, she received good job
evaluations and good reports on her progress in the Options Program from store manager
Shaw. (G.C. Ex. 14 and 15.)
In early May, Kenton had a conversation with Shaw about the fact that her work hours
had been reduced. Kenton was unhappy with the reduction, and questioned how she could “get
[her] Option Program work done with [only] 20 hours [of work] a week.” It was during this
conversation that Kenton brought up the subject of the Union. She complained about the
reduction in her hours of work and then stated that, “This is why we need a union.” Shaw
apparently did not respond to Kenton’s comment about the Union, and they never discussed the
Union further.
As part of her training for the Options Program, Kenton received regular reviews from
Shaw and District Manager Kelvin Parker. However, according to Kenton, at about the time that
she mentioned the Union to Shaw, she ceased having those regular reviews. Kenton testified
that shortly thereafter, in June of 2009, she was assigned to help perform a “refit” overnight at
store number 1249. She was in the break room of that store when she observed a hand-written
message on a white board that said, if employees wished union representatives to stop coming
to their homes, the employees could “write statements so that we could put an end to this.” 12
During June, Kenton transferred to store number 1035. The store manager there was
Daemon Smith. Kenton attempted to continue her participation in the Options Program, and
complains that her continued participation was delayed until July 27. She further complains that
although she was allowed to continue in the program, she was required to complete much of the
paper work again.
In his post-hearing brief, counsel for the General Counsel contends that Kenton
corresponded with Taylor via email on the subject of the Union. It was during counsel’s cross-
examination of Yousefian that she testified that Taylor had told her about such emails. Further,
Yousefian testified that from her conversation with Taylor, she got the impression that Kenton

12 Presumably, this evidence is offered to support the General Counsel’s contention that the
Respondent exhibited animus towards the Union.
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thought that the Union was “an important entity.” Counsel then offered the emails between
Kenton and Taylor, where the Union was apparently discussed, into evidence. However, I
sustained counsel for the Respondent’s objections to the admission of these documents into
evidence, and rejected them. At the request of counsel for the General Counsel, I allowed the
emails to be placed in a rejected exhibit file. (G.C. Rej. Ex. 17.)
It is important to note that counsel for the General Counsel called Kenton to testify in his
case in chief, and she did testify at some length. However, for some inexplicable reason,
counsel for the General Counsel did not ask Kenton about this email communication between
her and Taylor where the Union was apparently discussed, did not ask her to identify the emails,
and did not move for their admission into evidence while she was testifying.
Further, in his case in chief, counsel for the General Counsel also called Taylor and
Yousefian to testify under rule 611(c) of the Federal Rules of Evidence. However, again for
some inexplicable reason, counsel for the General Counsel did not ask either Taylor or
Yousefian about the email communication between Kenton and Taylor where the Union was
apparently discussed, did not ask either witness to identify the emails, and did not move for their
admission into evidence while either witness was testifying during the General Counsel’s case
in chief.
It was not until the following day that counsel for the General Counsel apparently
decided that he had neglected to offer these emails into evidence, which may have potentially
been an important part of the General Counsel’s case. Earlier, counsel for the General Counsel
had represented that he only had one additional witness to call, but that witness had not
appeared to testify. However, instead of resting his case, as he had earlier indicated he would
do, counsel for the General Counsel asked permission to recall Kenton and/or Taylor,
apparently in an effort to introduce the emails into evidence. Neither Kenton nor Taylor was
present in the hearing room at that time. Counsel for the Respondent represented that Taylor
was on a plane heading to California, where he resides, and counsel for the General Counsel
represented that he could perhaps have Kenton present in the hearing room in approximately
one and a half hours.
Counsel for the Respondent strongly objected to counsel for the General Counsel being
permitted to recall witnesses, who the General Counsel had called the previous day, for the
purpose of asking them questions regarding the emails and offering those emails into evidence,
which the General Counsel could have previously done. Further, he objected as neither witness
was present in the hearing room and prepared to testify. Counsel for the General Counsel
argued that he had not formally rested, and that any mistake that he had made should not
prejudice Kenton. He asked for a postponement to bring Kenton or Taylor back to testify.
I denied counsel for the General Counsel’s request for a postponement. Taylor had left
the State and Kenton was not present and, according to counsel, would not be available for at
least 90 minutes. The General Counsel was not prepared to go forward, but even had he been
ready, in light of counsel for the Respondent’s objection, I would have denied him permission to
recall witnesses. As I explained to counsel for the General Counsel, the Board’s unfair labor
practice hearings are adversarial proceedings. Counsel for the General Counsel had a full
opportunity to question both Kenton and Taylor about the emails in issue and to offer those
emails into evidence. He simply failed to do so. Allowing him a day later to recall those
witnesses would have prejudiced the Respondent. Therefore, I denied his request. Having no
further witnesses available to present, I considered that counsel for the General Counsel had
rested, and I directed counsel for the Respondent to begin his case in chief.
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In his case in chief, counsel for the Respondent called Yousefian to testify. It was during
counsel for the General Counsel’s cross-examination of Yousefian that counsel attempted to
have the emails between Kenton and Taylor admitted as an exhibit. As noted above, I
sustained the Respondent’s objection and denied the admission of the emails, but permitted
them to be placed in the rejected exhibit file. Counsel for the Respondent objected to the
admission of the emails through Yousefian as improperly permitting counsel for the General
Counsel to do through the “back door” what he failed to do through the “front door,” namely to
offer the documents for admission in his case in chief through the testimony of either Taylor or
Kenton. Agreeing with counsel for the Respondent’s objection, I sustained it.
In his post-hearing brief, counsel for the General Counsel contends that Kenton provided
an affidavit to the Board in connection with one of the earlier charges in this combined case; and
that the Respondent was aware of Kenton’s cooperation with the Board since counsel for the
General Counsel himself sent a letter to counsel for the Respondent mentioning Kenton’s name,
and requesting evidence in response to the allegations in those charges. At the trial in this
matter, counsel for the General Counsel moved for the admission into evidence of the letter that
he purportedly sent to counsel for the Respondent during the investigation of these charges,
seeking evidence in response to certain claims being made by Kenton.13 Counsel for the
Respondent objected to the admission of said letter.
Once again, counsel for the General Counsel inexplicably failed to question Kenton
about her cooperation with the Board when he had the chance to do so during his examination
of Kenton in his case in chief. Counsel could have easily asked Kenton whether she furnished
an affidavit to the Board in connection with this case, and could have questioned the
Respondent’s managers concerning their knowledge of such cooperation. However, he did no
such thing. Instead, counsel for the General Counsel attempted to involve himself in the
evidentiary portion of the case, as he offered his own letter, purportedly sent to counsel for the
Respondent, as evidence of Kenton’s cooperation with the Board and of the Respondent’s
knowledge of such cooperation.
It was improper for counsel for the General Counsel, as the representative and advocate
of a party to this proceeding, to have attempted to involve himself in the substantive allegations
of this case.14 I sustained counsel for the Respondent’s objection to the admission of the letter
from counsel for the General Counsel, which was purportedly sent to counsel for the
Respondent. However, at the request of counsel for the General Counsel, I allowed the letter to
be placed in the rejected exhibit file. (G.C. Rej. Ex.16.)
On the evening of August 27, 2009, Kenton was arrested by the Las Vegas Police on a
charge of domestic violence. Kenton was scheduled to work the following morning, but was
apparently not permitted to make telephone calls until later in the day. After the start of her
shift, Kenton was able to speak by phone with Edwin Poindexter, the team lead at store 1035.
According to Kenton, she told Poindexter that she was in jail and would not be able to work until
released. She testified that Poindexter told her not to worry and that her job would be fine.
However, Poindexder testified that when told Kenton was in jail he responded that he hoped

13 Counsel for the General Counsel obviously sought admission of this letter into evidence in
support of the Section 8(a)(4) allegation in the complaint.
14 If the admission into evidence of counsel’s letter was essential to the General Counsel’s
case, it would have been prudent for the case to have been tried by a representative of the
General Counsel’s office who had not authored the letter in question.
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that it was not too serious. Allegedly she said that the problem would be corrected within the
next few days. According to Poindexter, he ended the conversation by saying, “I wish you the
best of luck.”
Apparently just prior to Kenton’s call on August 28, Kenton’s aunt had contacted the
store with the information that she had been arrested. It is unclear from the evidence whether
the aunt thereafter contacted the store with an update on Kenton’s status. However, what is
clear is that Kenton never re-contacted the store to say that she would not be working her shifts
because she remained incarcerated. She testified that while in jail she did have the ability to
make collect telephone calls.
Starting on August 30, the Respondent’s managers exchanged a series of emails
regarding Kenton’s status. These emails were sent or received by Kelvin Parker, Andrew
Taylor, Daemon Smith, and Paula Agwu and went through the period of September 2. A review
of the correspondence shows that the mangers were trying to decide what should happen to
Kenton for having missed an increasing number of shifts without having contacted the store
before each shift to report her absence. As of August 30, Daemon Smith indicated to Agwu that
Kenton had missed 3 shifts without contacting the store prior to the commencement of each
shift. Smith stated his belief that 3 such no-show/no-call absences constituted job
abandonment. The emails culminated in a September 2 message from Taylor to Smith in which
Taylor indicated that he had unsuccessfully tried to contact both Kenton and her emergency
contact family member. Taylor directed that they should go forward with the decision reached
earlier to terminate Kenton’s employment. (G.C. Ex. 6.)
Taylor testified that District Manager Parker made the final decision to terminate Kenton,
but whether the decision was made by Parker, Smith, Taylor, or collectively by the managers,
the termination letter signed by Taylor on September 2 indicates the termination is the result of
job abandonment. According to Taylor, shortly after the letter was sent, he received a call from
Kenton who had been released from jail. While Kenton testified that upon being released from
jail she attempted to determine her employment status by contacting a number of managers, the
sequence of contacts is unimportant. More to the point, it is undisputed that she and Taylor
spoke sometime on September 2, the day she was released from jail.
Taylor informed Kenton that she had been terminated by her store’s managers for job
abandonment, having missed at least three shrifts without calling into the store. Kenton pointed
out that when she was first arrested she had called the store and spoke with team lead
Poindexter to say that she would not be coming into work. Taylor asked her if she had called
into the store before the commencement of each shift that she missed, to which she responded
no. According to Kenton, she then volunteered her opinion that she had been fired because of
her union activity, which Taylor denied.
C. Analysis and Conclusions
1. Alleged Section 8(a)(1) Conduct
Paragraphs 5(a) and 7 of the complaint allege that the Respondent has since at least
November 18, 2008, maintained in its employee handbook a rule that violated Section 8(a)(1) of
the Act. As is stated in counsel’s post-hearing brief, the General Counsel contends that this
handbook provision, constituting a no-distribution policy, was overly-broad and, as such,
unlawful. Specifically, counsel’s brief makes it clear that the rule is overly-broad because it
prohibited the “distribution of literature during working time or on Company premises for any
purpose.” (emphasis added.)
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As is set forth in detail above in the fact section of this decision, prior to September 3,
2009, the Respondent maintained a “short-form” rule in its employee handbook and a “long-
form” rule on its company intranet site, both of which contained language that included a
prohibition on “the distribution of literature during working time or on Company premises for any
purpose.” It is the italicized portion of the clause (highlighted by the undersigned), which the
General Counsel contends is overly-broad and, thus, unlawful.
The Respondent does not deny the existence of this rule, but argues that it should not
be construed as unlawful, as in practice it did not limit or chill the employees’ Section 7 rights.
Counsel for the Respondent argues that as there is no evidence that the Employer ever
disciplined any employee for distributing literature on company premises during non-work time,
the policy should not be considered unlawful. In any event, the Respondent argues that as of
September 3, the allegedly unlawful language in the rule was corrected to replace “Company
premises” with “work area,” and affirmatively stated that employees may not distribute materials
only during “working time” or “at any time in a work area.” 15 While the General Counsel does
not contend that the revised language is unlawful, he does not acquiesce with the Respondent’s
contention that it “cured” the alleged violation of the Act by issuing the revised language and by
notifying its employees of the rescission.
I am of the view that the rule in question was clearly unlawful. The Board has said that,
“A rule prohibiting distribution of literature on employees’ own time and in nonworking areas is
presumptively invalid…A no-distribution rule which is not restricted to working time and to work
areas is overly broad and presumptively unlawful…The mere existence of an overly broad rule
of this kind tends to restrain and interfere with employees’ rights under the Act, even if the rule
is not enforced.” TeleTech Holdings, Inc., 333 NLRB 402, 403 (2001) (citations omitted).
Thus, the rule as originally written, both in short-form and long-form, prohibiting the
distribution of literature on Company premises for any purpose was unlawful on its face. The
Board has said that, “When a rule of this kind is found presumptively unlawful on its face, the
employer bears the burden to show that it communicated or applied the rule in a way that
conveyed a clear intent to permit distribution of literature in nonworking areas during nonworking
time.” Id. While the Respondent claims that it never enforced the rule, as no employees were
ever disciplined for its violation, this falls far short of the Board’s standard. Although employees
may not have been disciplined under the rule, there is no way to know what a chilling effect the
rule may have had on the exercise of employee rights. There is no evidence to show that while
the rule was in effect the Respondent made any effort to explain to its employees their right to
distribute literature during nonworking time in nonworking areas. Accordingly, the Respondent
has not met its burden.
Further, the Board held that, “a finding of a disclaimer of the invalid rule would require
that the Respondent demonstrate that it clearly disavowed or repudiated it.” Id. This is critical
in the case at hand, as the Employer argues that as of September 3 it did disavow and
repudiate the old rule, by issuing a new distribution rule containing lawful language. In addition,
the Respondent notified its employees of the revised rule through means of “team huddles” at
each of its stores, by posting the new rule in those stores, and by changing the language of the
rule in its employee handbook and on its intranet site.

15 The revised language reads as follows: “We also prohibit the distribution of literature
during working time or at any time in a work area for any purpose.” (emphasis added.)
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In its post-hearing brief, the Respondent cites Passavant Memorial Area Hospital, 237
NLRB 138, 138-139 (1978) for the proposition that by issuing its revised no-distribution policy, it
effectively cured any violation of the Act caused by its pre-September 3 policy. Under
Passavant, an employer may relieve itself of liability from unlawful conduct by: (1) repudiating
that conduct—as long as such repudiation is timely, unambiguous, and specific to the coercive
conduct; (2) adequately publishing the repudiation to the employees; (3) not engaging in any
further proscribed conduct; and (4) giving employees assurances that in the future, the
employer will not interfere with the exercise of their Section 7 rights.
It does appear that the post-September distribution language is lawful, that it was well
disseminated to the employees, who were appropriately informed that it was a replacement for
the earlier distribution language, and should have served as notice to those employees of their
right to distribute literature in accordance with Section 7 of the Act. Counsel for the General
Counsel does not challenge any of these assertions. However, he argues in his post-hearing
brief that any such disavowal or repudiation of the unlawful rule was not done in a timely
manner, such that it would cure the Respondent’s violation of the Act. I agree.
The Respondent’s unlawful distribution rule was in effect for a significant number of
months, at least ten months, from the November 18, 2008, the date specified in the complaint,
until the revised rule issued on September 3, 2009.16 Thus, the unlawful rule was in effect
during the period of time that the Union was engaged in an organizing campaign. The existence
of such an unlawful rule may well have had a chilling effect on the willingness of union
supporters to engage in the distribution of pro-union literature. In my opinion, the interference
with Section 7 rights was significant. Ten months is a considerable period of time, especially
during an organizing campaign, and although the Respondent eventually revised its rule to
ensure that it was no longer violating its employees’ rights, the corrective action was “to little to
late.” The corrective action was not timely and, thus, did not cure the Respondent’s unfair labor
practice under Passavant, supra.
Accordingly, I conclude that by promulgating and maintaining in its employee handbook
and on its intranet site an unlawful no-distribution rule, the Respondent violated Section 8(a)(1)
of the Act, as alleged in paragraphs 5(a) and 7 of the complaint.
It is alleged in complaint paragraphs 5(a)(1), (2), and 7 of the complaint that in early April
of 2009, the Respondent, through its store manager, Barbara Shaw, interrogated its employees
about their union activity, and created an impression among them that their union activities were
under surveillance, in violation of Section 8(a)(1) of the Act. As was noted above in the fact
section of this decision, employees Michelle Sumner and Catherine Everhart both testified that
during March or April of 2009, they had conversations with Shaw during which the Union was
mentioned. Saw did not testify, and, so, the testimony of the employees remains largely
unrebutted.
According to Sumner, while at work on the sales floor in her store, she was approached
by Shaw who told her that, “[E]veryone is writing a statement about the union harassment, and
you need to write yours, because everyone has already written theirs.” Above, in the fact
section of this decision, I describe at length the complaints that a number of employees made
about the uninvited visits to their homes by union organizers. When they raised their complaints

16 The Respondent does not deny that the original distribution rule was in effect for at least
this period of time.
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to certain of the Respondent’s managers, some of them were told to put the complaints in
writing and send them to the Union. Apparently, this was the reference that Shaw was making
in her conversation with Sumner. Sumner testified that she did not respond to Shaw’s request
and never wrote such a statement. Further, she testified that Shaw never mentioned the Union
to her again. Regarding her relationship with Shaw, Sumner said that she was comfortable
going to Shaw, who was her supervisor, about anything, including complaints.
Although Sumner indicated that she and Shaw were alone during the conversation,
employee Everhart testified that she also was present during this conversation. According to
Everhart, Shaw, who was also her supervisor, asked both employees to “write statements
because one of the employees was harassed by the Union.” In response, Everhart told Shaw
that she was not writing a statement, which comment allegedly elicited a “funny” look from
Shaw. Later Everhart’s testimony changed somewhat as she claimed that Shaw started the
conversation by asking, “Has anybody talked to the Union?”
I do not believe that Sumner’s failure to recall that Everhart was present during their
conversation with Shaw was particularly significant. I assume that she merely forgot. I found
both Sumner and Everhart reasonably credible, and their respective stories about what Shaw
said were for the most part consistent with each other. Both versions of the conversation
supported the central theme that Shaw asked them to furnish statements about their contacts
with the Union. The Respondent failed to call Shaw to testify, which I assume and conclude
was because had counsel done so, Shaw would have confirmed the testimony of Sumner and
Everhart.
In determining whether a supervisor’s questions to an employee about her union
activities were coercive under the Act, the Board looks to the “totality of the circumstances.”
Rossmore House, 269 NLRB 1176 (1984), aff’d. sub nom. HERE Local 11 v. NLRB, 760 F.2d
1006 (9th Cir. 1985). In Westwood Health Care Center, 330 NLRB 935 (2000), the Board listed
a number of factors considered in determining whether alleged interrogations under Rossmore
House were coercive. These are referred to as “Bourne factors,” so named because they were
first set forth in Bourne v. NLRB, 332 F.2d 47, 48 (2nd Cir. 1964). These factors include the
background of the parties’ relationship, the nature of the information sought, the identity of the
questioner, the place and method of interrogation, and the truthfulness of the reply.
Applying the “Bourne factors” to the matter at hand, Shaw was the store manager, an
admitted supervisor, at the store where both Sumner and Everhart worked. To a very large
extent, she controlled their future with the Respondent. As the Respondent’s counsel made
clear through the course of the hearing, it is the store manager who determines disciplinary
action involving the store employees, with company human resources managers acting only in
an advisory capacity. That having been said, it did appear from their testimony that both
Sumner and Everhart had a reasonably good relationship with their manager. Still, Sumner
testified that she did not respond to Shaw’s request for a statement. Everhart was more candid
and direct, simply declining to write such a statement. In the case of both employees, there was
no indication that they had ever previously discussed the Union with Shaw, or that she was
aware of their sentiments towards the Union. While Sumner’s level of support for the Union is
unknown to the undersigned, Everhart was an open union supporter. As noted earlier, she
signed a letter addressed to the Respondent’s CEO seeking the Employer’s neutrality during the
organizing campaign. However, that letter was dated June 15, at least several months after the
conversation in question. (Res. Ex. 1.)
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While the issue is not clear cut, balancing the various factors, I conclude that the totality
of the circumstances weighs in favor of concluding that the conversation Shaw had with Sumner
and Everhart was coercive in nature. In the course of asking them to furnish written statements
about harassment from the Union, she was really questioning them about their contacts with the
Union and their support for the Union’s organizational campaign. For all practical purposes, she
was interrogating them regarding their union activity. In doing so, Shaw was interfering with,
restraining, and coercing Sumner and Everhart in the exercise of their Section 7 rights.
Accordingly, I find that the Respondent has violated Section 8(a)(1) of the Act, as alleged in
complaint paragraphs 5(b)(1) and 7.
Further, I believe that this same conversation created the impression among Sumner
and Everhart that their union activities were under surveillance by the Respondent. Shaw
approached them. They did not come to her complaining about uninvited home visits by union
organizers. In so doing, Shaw was, at a minimum, telling these employees that the Respondent
was aware that the Union’s organizing campaign included visits to employees’ homes.
The test for whether an employer creates an unlawful impression of surveillance is
whether, under the circumstances, an employee could reasonably conclude that her union
activities are being monitored. Mountaineer Steel Inc., 326 NLRB 787 (1998), enfd. 8 Fed.
Appx. 180 (4th Cir. 2001). What other conclusion could Everhart and Sumner have reached
when Shaw asked them to write a statement concerning union harassment, which they likely
knew related to home visits by union organizers. Even assuming there had been no such visits
to their homes, they were certainly left with the impression that management believed that union
organizers had been to see them. Certainly this left them in an uncomfortable position. The
Board has held that under the Act “[e]mployees should not have to fear that ‘members of
management are peering over their shoulders, taking note of who is involved in union activities,
and in what particular ways.’” Conley Trucking, 349 NLRB No. 30 (2007), quoting Fred’k
Wallace & Son, Inc., 331 NLRB 914 (2000).
Shaw’s statement to Sumner and Everhart really left them in an untenable position,
believing that management was watching employees and was interested in knowing whether
they had any contacts with the Union. However, even assuming they were not personally
worried about surveillance, merely leaving them with that impression constituted a violation of
the Act. The Board applies an “objective standard of whether the remark tends to interfere with
the free exercise of employee rights. The Board does not consider either the motivation behind
the remark or its actual effect.” Miller Pump & Plumbing, 334 NLRB 824 (2001). In any event, I
believe that Sumner and Everhart would have reasonable believed that the Respondent was
interested in knowing about their union activity. To this extent, Shaw’s remarks clearly
interfered with the employees’ exercise of their Section 7 rights.
Based on the above, I conclude that the Respondent had created an impression among
certain of its employees that their union activities were under surveillance. Such conduct
constitutes a violation of the Act, as alleged in paragraphs 5(b)(2) and 7 of the complaint.
Complaint paragraphs 5(c) and 7 allege that in about late April of 2009, the Respondent,
through Andrew Taylor and Paula Agwu, at its East Lake Mead Boulevard, Las Vegas, Nevada
store17 solicited employee complaints and grievances, and promised its employees improved
terms and conditions of employment if they refrained from union organizational activity in
violation of Section 8(a)(1) of the Act.

17 This is the Respondent’s store number 1247.
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There is a long line of Board and court cases that stand for the proposition that an
employer with an established practice of soliciting and resolving employee grievances may
continue that practice during an organizing campaign. Johnson Tech., Inc., 345 NLRB 762, 764
(2005) (“It is well established that an employer with a past practice of soliciting employee
grievances may continue such a practice during a union’s organizational campaign.”); TNT
Logistics N. Am., Inc., 345 NLRB 290 (2005) (no violation during ongoing union organizing
campaign where employer had a past practice of soliciting grievances through an “open door”
policy); Wal-Mart Stores, Inc., 340 NLRB 637, 640 (2003) (“It is well established that an
employer with a past practice of soliciting employee grievances through an open door or similar-
type policy may continue such a policy during a union’s organizational campaign.”); Curwood,
Inc., 339 NLRB 1137 (2003), aff’d in part, vacated in part, 397 F.3d 548 (7th Cir. 2005)
(employer’s continued practice of allowing employee questions did not violate the Act); see also
MacDonald Mach. Co., 335 NLRB 319 (2001). Of course, the question that must be answered in
the case before me is whether the Respondent had such a past practice at its various stores.
The unrebutted evidence supports the conclusion that the Respondent did in fact have a
past practice of soliciting employee complaints, and remedying those complaints when possible.
The Employer’s Director of Employee Relations, Nahal Yousefian, testified credibly about its
open door policy, and its requirement that its Employee Relation Managers “check in” regularly
at its various stores to determine how things are going. As is more fully discussed above in the
fact section of this decision, such visits are considered as “temperature checks,” where the
managers spend 50% of their time “soliciting” employee problems, issues, and concerns, and
attempting to resolve them.
Upon visiting a store, if a manager learns of a minor issue or concern that can be
resolved “right then and there,” the manager is expected to just resolve it. Where the issue is
more complex, involves a number of employees, or perhaps the entire store, the manager is
expected to give Yousefian a report. Further, the Employee Relations Manager is expected to
“partner up” with the District Manager for that particular store and then together assemble a plan
to address the issue raised by the employees.
Additionally, when visiting a store, the management team, including the store manager,
the District Manager, and the Employee Relations Manager may engage the employees in a
group discussion of those issues of concern to the employees. This collective approach to
problem solving is referred to as the “team-huddle policy.” Yousefian testified that this open
door, hands on approach to problem solving has been actively used by the Employer with its
employees since the first store was opened, and continues to be used to date.
The record evidence establishes that Taylor first visited store 1247 no later than
December 12, 2008, and during that visit he discussed with the employees issues of concern to
them. Further, the evidence indicates that Taylor attempted to immediately resolve those
concerns, which included security, inadequate staffing, and benefits information. (Res. Ex. 51.)
There was no evidence that at that time the Union was actively attempting to organize this store,
or that the visit was in any way related to union activity. Yousefian testified that Taylor has
continued to conduct such visits to those stores that he is responsible for, including store 1247,
through the date of the hearing. She reiterated that such visits and “temperature checks”
constituted a significant part of his job duties as an Employee Relations Manager.
It appears that it was a very specific complaint that brought Taylor to store 1247 in April
of 2009. On April 24, Sheritha Grose, a team lead at store 1247, sent an email with an attached
written statement to the Respondent’s employee relations department raising concerns about a
scheduling issue that she had with store manager Shaw. This complaint involved a number of
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employees including Grose. (Res. Ex. 10.) Yousefian testified that in response, the store was
visited by Taylor and Agwu. It is the Respondent’s contention that this visit by the two
Employee Relations Managers was a “temperature check” related to Grose’s complaint, and
totally unrelated to the Union’s organizing campaign, or the union activity of any of the
employees who worked in the store.
Customer assistant Catherine Everhart testified that in April she met Taylor and Agwu
when they first entered store 1247. The evidence indicates that this was the April 24 visit.
According to Everhart, Taylor and Agwu introduced themselves, asked her “if everything was
okay, and if [she] had any issues.” She responded that she was “okay,” to which Taylor asked,
“Just okay?” Agwu asked if there was anything that they could do to “fix” things. Everhart
allegedly responded that “there were some issues with hours for lunches.” Both Taylor and
Agwu responded that they could “fix it.” Then, according to Everhart, she was asked how she
felt about the people that she worked with, to which she responded that she liked them. The
conversation then ended as she became busy bagging groceries. Everhart testified that there
was no mention of the Union during this conversation.
Later that same day, Taylor and Agwu held a meeting for employees in the store
stockroom. Besides Everhart, also present for the meeting were District Manager Kevin Parker,
a number of team leads, and other customer assistants. Store manager Shaw was apparently
not present, as she went to service customers at the front of the store. According to Everhart,
Agwu started the meeting by saying that “they were there for us.” Further, Agwu allegedly told
the assembled employees that they knew that “there were issues in the store.” However, Agwu
did not say what those issues were, other than they were “private.” Everhart thinks that Parker
“might have said something” about the “issues in the store” being “resolved after investigation.”
Other than that, Everhart could not recall anything else that was said at the meeting.
During cross-examination by counsel for the Respondent, Everhart acknowledged that
she believed the reason that Taylor and Agwu came to the store in April was because Sheritha
Grose had some issues with store manager Shaw, and Grose had contacted employee relations
to complain. As Agwu and Parker did not testify at the hearing, and Taylor, who did testify, did
not discuss his visit to store 1247, Everhart’s testimony remains unrebutted.
While the April 24 visit to the store occurred at a time when the Union was organizing
that store, the evidence indicates that it was a result of a specific complaint made by team lead
Grose. The visit by Employee Relations Managers Taylor and Agwu was consistent with the
past practice of the Respondent to immediately address employee complaints and to attempt to
remedy them as soon as possible, or to use the Respondent’s terminology, to take a
“temperature check” of the store.
The Union was not mentioned or discussed during the visit. It seems that the visit was
just what it appeared to be, an attempt on the part of the Employee Relations Managers to
address Grose’s complaint about scheduling, and related issues, and remedy those grievances
if possible. The afternoon meeting, during which Regional Manager Parker was also present,
as well as Grose and various customer assistants, had the appearance of a “team-huddle,” and
was consistent with the Employer’s policy on how to address issues relating to more than one
employee.
The record shows unambiguously that from the time its stores began to open, the
Respondent has maintained an active policy and program of having its Employee Relations
Managers aggressively seek out employee grievances, with a view to remedying those
grievances whenever possible. This is the ultimate open door policy. Further, there is no
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evidence that the Respondent’s policy of conducting “temperature checks” at the individual
stores periodically, or whenever problems arose, was in any way altered by the commencement
of the Union’s organizational campaign.
As the Respondent had a well established past practice of soliciting and resolving
employee grievances, its continuation of that practice during the Union’s organizing campaign
did not constitute a violation of the Act. Johnson Tech., Inc., supra; TNT Logistics N. Am., Inc.,
supra; Wal-Mart Stores, Inc., 339 NLRB 1178 (2003); and Wal-Mart Stores, Inc., 340 NLRB
637, 640 (2003). The Respondent was free to continue its past practice of attempted to resolve
employee complaints, whether or not the Union was attempting to organize the employees of
store 1247. That is precisely what Taylor, Agwu, and Parker were doing on April 24.
These actions by the Respondent’s managers did not constitute a violation of the Act, as
they merely conformed to the Respondent’s past practice. Accordingly, I hereby recommend
that complaint paragraph 5(c) be dismissed.
It is alleged in complaint paragraph 5(d) that in the middle of May 2009, the Respondent,
by Kelvin Parker, at its East Lake Mead Boulevard, Las Vegas store,18 promised its employees
improved terms and conditions of employment if they refrained from union organizational
activities. However, no evidence of such an event was offered at the hearing. Further, in his
post-hearing brief, counsel for the General Counsel is silent as to this complaint allegation.
The closest reference to any such event was Parker’s presence, along with Taylor and
Agwu, on April 24 at store 1247, as part of the “team-huddle” discussed at length immediately
above. Parker, as the District Manager for the store, would have normally been present for
such a gathering when Employee Relations Managers were visiting the store. I have already
concluded that the Respondent’s managers were not in violation of the Act when on that date
they followed the Respondent’s past practice and solicited and listened to employee complaints
with the object of attempting to adjust those complaints.
Customer assistance employee Everhart testified that at the store meeting with the
Respondent’s managers, Parker “might have said something,” perhaps that “the issues in the
store were going to be resolved after investigation or looking into or something.” However, she
first indicated that she was “not real sure” what Parker had said. In my view, this testimony is so
uncertain as to be entitled to no weight. In any event, as noted, I have already concluded that
such statements on the part of the Respondent’s managers at store 1247 on April 24 did not
violate the Act as a promise of benefit, since the Respondent was merely following its past
practice. Accordingly, I hereby recommend that complaint paragraph 5(d) be dismissed.
2. Alleged Sections 8(a)(3) and (4) Conduct
Complaint paragraphs 6(a) and 8 allege that on July 2, 2009, the Respondent violated
Section 8(3) of the Act by discharged employee Tamara Williams because of her union activity.
As is fully explained above in the fact section of this decision, the Respondent takes the position
that it discharged Williams only because she was in violation of the company absentee policy,
specifically the no-show/no-call policy, by failing to call into her store before each of the three or
more shifts which she missed. Under these circumstances, it is necessary for me to determine
the Respondent’s motivation in discharging Williams.

18 Store number 1247.
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In Wright Line, A Division of Wright Line, Inc., 251 NLRB 1083 (1980), enfd. 662 F.2d
899 (1st Cir. 1981), cert denied 455 U.S. 989 (1982), the Board announced the following
causation test in all cases alleging violations of Section 8(a)(3) or violations of 8(a)(1) turning on
employer motivation. First, the General Counsel must make a prima facie showing sufficient to
support the inference that protected conduct was a “motivating factor” in the employer’s
decision. This showing must be by a preponderance of the evidence. Then, upon such a
showing, the burden shifts to the employer to demonstrate that the same action would have
taken place even in the absence of the protected conduct. The Board’s Wright Line test was
approved by the United States Supreme Court in NLRB v. Transportation Corp., 462 U.S. 393
(1983).
In the matter before me, I conclude that the General Counsel has made a prima facie
showing, although a minimal one, that Williams’ protected union activity was a motivating factor
in the Respondent’s decision to terminate her. In Tracker Marine, L.L.C., 337 NLRB 644 (2002),
the Board affirmed the administrative law judge who evaluated the question of the Employer’s
motivation under the framework established in Wright Line. Under that framework, the judge
held that the General Counsel must establish four elements by a preponderance of the
evidence. First, the General Counsel must show the existence of activity protected by the Act.
Second, the General Counsel must prove that the Respondent was aware that the employee
had engaged in such activity. Third, the General Counsel must show that the alleged
discriminatee suffered an adverse employment action. Fourth, the General Counsel must
establish a link, or nexus, between the employee’s protected activity and the adverse
employment action. In effect, proving these four elements creates a presumption that the
adverse employment action violated the Act.19 To rebut such a presumption, the Respondent
bears the burden of showing that the same action would have taken place even in the absence
of the protected conduct. See Mano Electric, Inc., 321 NLRB 278, 280 fn. 12 (1996); Farmer
Bros. Co., 303 NLRB 638, 649 (1991).
Williams was engaged in union activity, although limited. Employees Catherine
Everhart, Lester Bosiah, and Williams all signed a letter dated June 15, 2009, addressed to the
Respondent’s CEO, Tim Mason, in which they indicated that there was a “great interest” among
the Respondent’s employees “in forming a union,” and asked for the Employer “to remain
neutral” during the organizing process. (Res. Ex. 1.) Everhart testified that the letter was
ultimately presented not to Mason, but to a Regional Manager, she believes Al O’Donald, who
was visiting the store where she worked.
While counsel for the Respondent does not deny that the Respondent, as an entity, had
knowledge of this letter, he argues that there is no evidence that any of the decision makers
who subsequently terminated Williams had any knowledge of her union activity. However, I
reject this argument, since knowledge by a Regional Manager, or other of the Respondent’s
managers, must be considered constructive knowledge to the Respondent. I will, therefore,
assume that by July 2, the date of her termination, those managers responsible for Williams’
termination were aware of her union activity.

19 More recently, the Board has indicated that, “Board cases typically do not include [the
fourth element] as an independent element.” Wal-Mart Stores, Inc., 352 NLRB No. 103, fn. 5
(2008), citing Gelita USA Inc., 352 NLRB No 59 fn. 2 (2008); SFO Good-Nite Inn, LLC, 352
NLRB No 42 slip op at 2 (2008).
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The termination of Williams on July 2 was obviously an adverse employment action.
Further, the timing of the termination, two weeks following the presentation of the letter
addressed to Mason, which letter demonstrated her union sympathy, is sufficient to establish a
nexus between Williams’ union activity and her termination. This finding is support by the
evidence that the Respondent harbored union animus.
Having found that the Respondent violated Section 8(a)(1) of the Act by maintaining an
overly-broad no-distribution policy, and by store manager Barbara Shaw’s conduct in unlawfully
interrogating employees regarding their union activity and by creating among those employees
the impression that their union activities were under surveillance, I conclude that the
Respondent has demonstrated animus towards the Union. Such animus, combined with the
timing of her discharge, is sufficient to meet the General Counsel’s burden of establishing that
the Respondent’s action in terminating Williams was motivated, at least in part, by her union
activity.
The burden now shifts to the Respondent to show that it would have taken the same
action absent the protected conduct. Senior Citizens Coordinating Council of Riverbay
Community, 330 NLRB 1100 (2000); Regal Recycling, Inc., 329 NLRB 355 (1999). The
Respondent must persuade by a preponderance of the evidence. Peter Vitalie Company, Inc.,
310 NLRB 865, 871 (1993). I am of the view that the Respondent has met this burden.
Earlier, in the fact section of this decision, I set forth in detail the Respondent’s no-
show/no-call policy, which is a part of its larger absentee policy. That policy is written and
available to employees in the Respondent’s employee handbook and on its intranet site.
However, the General Counsel argues that the policy as written is not the policy as it was
applied to Williams and Deana Kenton. As written, counsel for the General Counsel claims that
while employees absent from work without permission are expected to call into the store with an
excuse, they are only required to call once for consecutive shift absences for the same reason.
Although three or more no-show/no-call absences will, under the policy, result in a discharge,
the General Counsel contends that a call into an employee’s store, stating a reason for the
absence, is sufficient notice, regardless of the number of consecutive shifts missed thereafter,
as long as the absences are for the same reason. Allegedly, the policy requires only this single
contact.
The Respondent disagrees, arguing that the policy requires that an employee absent
without permission must call into his/her store prior to the start of the shift to alert management
of the absence, and that, significantly, the employee must call in before each missed shift,
regardless of whether the shifts are consecutive, and the absences due to the same reason.
Each such shift for which there is no call is considered a no-show/no-call absence, after three or
more of which consecutive shifts the employee will be terminated.
Director of Employee Relations Yousefian testified credibly that when employees first
start work, the requirement that they call in for each day they have an unscheduled absence is
communicated to them by management. Further, both Yousefian and Employee Relations
Manager Taylor testified that in applying its attendance policy, the Respondent’s normal practice
has been to terminate the employment of an employee who misses three or more consecutive
shifts without calling in before each shift. No evidence was offered to rebut this assertion.
In my view, it is unnecessary to dissect the precise language used by the Respondent in
its written no-show/no-call policy contained in the employee handbook and on the intranet site.
While the parties may disagree as to the meaning of that language, the evidence regarding the
actual practice is unambiguous. In an effort to demonstrate its normal practice concerning the
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termination of employees for job abandonment, the Respondent introduced termination
documents for 31 employees who had been employed in its Nevada stores. Of those 31
employees who were terminated for job abandonment, 13 were specifically fired for no-show/no-
call violations. Of that number, two, David Sexton and Anthony Tienda, were terminated under
the Respondent’s attendance policy because of jail-related absences. This is significant since
both Kenton and Williams were absent from work due to incarceration in the county jail.
For the most part, the records demonstrate that the Respondent has a standard
procedure that it follows in terminating employees for job abandonment and, in particular, for no-
show/no-call absences. That procedure results in the termination of an employee who fails to
call in for each and every shift where there are three or more consecutive absences.20 In his
post-hearing brief, counsel for the General Counsel did not make a serious attempt to show that
such a policy and practice, as supported by the voluminous documents, was not in effect.
There is no question that Williams was in violation of the Respondent’s no-show/no-call
policy as practiced by the Respondent. As is more fully set forth above in the fact section of this
decision, Williams was arrested by the police in the early morning hours of June 24. Later that
day from jail she did call her store, as she was scheduled to work that day, and asked the
employee she spoke with to tell her manager that she was in jail and would be for a few days.
In total, Williams was incarcerated for ten days, during which time she did not attempt to again
contact her store. Because of her incarceration, Williams did not report for the following
scheduled work shifts on June 25, 27, 28, and July 1. While she had the ability to make collect
phone calls from the jail, she did not call her store again after the call made the day of her
arrest.
By letter dated July 2, Williams was terminated for job abandonment. She had missed 4
shifts without calling in each day to inform her manager of her absences. I find that the
Respondent in terminating Williams was following its no-show/no-call practice. A series of
emails between Taylor, Employee Relations Manager Agwu, Yousefian, and store manager in
training Vanessa Retchless, prior to Williams’ discharge, show that the managers were trying to
decide what to do about Williams’ four no-show/no-call absences. They also demonstrate that
unsuccessful efforts had been made to contact Williams. (G.C. Ex. 5.) Regardless of who
made the final decision to terminate Williams, whether is was Taylor who signed the termination
letter, District Manager Parker, or store manager Megrew, it appears clear to me that the
principal motivation behind the termination was Williams’ failure to call in prior to each of four
consecutive shifts to notify management of her absences.
I doubt that Williams’ union activity, minimal as it was, seriously entered into
management’s decision making process. It is significant to note that Williams’ union activity
consisted entirely of signing the June 15 letter, along with employees Bosiah and Everhart,
addressed to the Respondent’s CEO Mason and requesting that the Employer remain neutral in
the union campaign. At the time of the hearing, Everhart was still employee by the Respondent,
and she testified that Bosiah was too.
In summary, the Respondent has demonstrated by a preponderance of the evidence
that even in the absence of Williams’ union activity, the Respondent would have fired her
because she was in violation of its absentee policy, specifically the no-show/no-call policy.
Documentation established that Williams was not treated in a disparate fashion when she was

20 Of the 13 no-show/no-call terminations, three were ambiguous as to the number of shifts
missed where the employee failed to call in. (Res. Ex. 18, 43, and 49.)
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fired for failing to call her store manager to report her absences on each day prior to the start of
four consecutive shifts. Accordingly, the Respondent has met its burden and rebutted the
General Counsel’s prima facie case.
Therefore, I shall recommend that complaint paragraph 6(a) be dismissed.
Complaint paragraphs 6(b), 8, and 9 allege that on September 2, 2009, the Respondent
violated Sections 8(a)(3) and (4) of the Act by discharging Deana Kenton because of her union
activity and because she cooperated with the Agency by filing charges or giving testimony under
the Act. As fully explained in the fact section of this decision, the Respondent takes the position
that it fired Kenton only because she was in violation of the company absentee policy,
specifically the no-show/no-call policy by failing to call into her store before each of three shifts
that she missed. Under these circumstances, it is necessary for me to determine the
Respondent’s motivation in terminating Kenton.
Based on the Board’s formula, as set forth in Wright Line, supra, and Tracker Marine,
supra, I conclude that the General Counsel has made a prima facie showing, although a
minimal one, that Kenton’s union activity was a motivating factor in the Respondent’s decision to
discharge her. Kenton was engaged in union activity. However, the exact extent of that union
activity is unclear.
In his post-hearing brief, counsel for the General Counsel contends that Kenton
corresponded with Taylor via email on the subject of the Union. It was during counsel’s cross-
examination of Yousefian that she testified that Taylor had told her about such emails. Further,
Yousefian testified that from her conversation with Taylor, she got the impression that Kenton
thought that the Union was “an important entity.” However, as is noted above in the fact section
of this decision, when, during cross-examination of Yousefian, counsel for the General Counsel
offered these emails between Kenton and Taylor for admission into evidence, I sustained
counsel for the Respondent’s objection and rejected them. I did so because counsel for the
General Counsel had failed in his case in chief when, having called Kenton and Taylor as
witnesses, he neglected to question them regarding the emails or to have the emails admitted
into evidence through their testimony.
Never the less, Yousefian’s testimony is sufficient to establish that Kenton thought the
Union was “an important entity,” and had corresponded with Taylor on the subject of the Union.
Further, Kenton had raised the subject of the Union with her store manager, Barbara Shaw,
when in May, during a conversation where Kenton was complaining about the reduction in her
weekly hours of work, she stated to Shaw that, “This is why we need a union.” This union
activity on the part of Kenton was obviously known to the Respondent. Yousefian, the Director
of Employee Relations, was aware that the Union was important to Kenton, and Kenton had
directly informed her store manager of the importance in which she viewed the Union.
The termination of Kenton on September 2 was obviously an adverse employment
action. While it is unclear from the record evidence just when Kenton and Taylor had
exchanged emails about the Union,21 presumably it was reasonably close to the time of her

21 At the request of counsel for the General Counsel, I placed the emails between Kenton
and Taylor in the rejected exhibit file. (G.C. Rej. Ex. 17.) The basis for my rejection of this
proposed exhibit is explained in full in the fact section of this decision. As a rejected exhibit, this
material is not in evidence, and, so, I have not considered the substance of this material in
rendering this decision.
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termination, likely within the period of the Union’s organizational campaign. Her comment to
Shaw about needing the Union was made in May, approximately four months prior to her
termination. In my view, the timing is sufficient to establish a nexus between Kenton’s union
activity and her termination. This finding is supported by the evidence that the Respondent
harbored union animus.
Having found that the Respondent violated Section 8(a)(1) of the Act by maintaining an
overly-broad no-distribution policy, and by store manager Shaw’s conduct in unlawfully
interrogating employees regarding their union activity and by creating among those employees
the impression that their union activities were under surveillance, I conclude that the
Respondent has demonstrated animus towards the Union. Such animus, combined with the
timing of her discharge, is sufficient to meet the General Counsel’s burden of establishing that
the Respondent’s action in terminating Kenton was motivated, at least in part, by her union
activity.
The burden now shifts to the Respondent to show that it would have taken the same
action absent the protected conduct. Senior Citizens Coordinating Council of Riverbay
Community, supra; Regal Recycling, Inc., supra. The Respondent must persuade by a
preponderance of the evidence. Peter Vitalie Company, Inc., supra. I am of the view that the
Respondent has met this burden.
I have noted in detail above, my conclusions regarding the Respondent’s absentee
policy, specifically its no-show/no-call policy as practiced. Simply put, if an employee has
unscheduled absences and fails to call into his/her store each time a shift is missed to explain
the absences, the employee will be terminated following the third consecutive shift where there
is such a no-call. Unfortunately, Kenton ran afoul of this policy.
On the evening of August 27, Kenton was arrested by the police. Later the next day,
she called her store, as she was scheduled to work that day, and spoke with team lead
Poindexter. She told him that she was in jail and would not be able to work until released.
Apparently that same day, Kenton’s aunt also alerted the store that she had been arrested. In
any event, although Kenton had the ability to make collect calls from jail, she did not attempt to
again contact her store until she was released. In the interim, she missed three consecutive
work shifts without calling in before each shift to explain that she was still in jail and would,
therefore, not be able to come to work.
Starting on August 30, the Respondent’s managers exchanged a series of emails
regarding Kenton’s status. This email correspondence and the managers involved are set forth
in detail in the fact section of this decision. In summary, Taylor recommended that in view of
Kenton’s violation of the no-show/no-call policy that she be terminated. While Taylor testified
that District Manager Parker made the final decision to terminate Kenton, whether that decision
was made by Parker, store manager Daemon Smith, Taylor, or collectively by the managers,
the termination letter signed by Taylor on September 2 indicates the termination is the result of
job abandonment.
Kenton was informed that she was terminated for job abandonment, having missed three
consecutive work shifts without calling in before each shift to explain her absences, a violation
of the Respondent’s no-show/no-call policy. The Respondent’s policy as practiced by it at its
Nevada stores was fully documented by the Respondent. As is set forth in detail above, the
Respondent’s records establish that the policy as practiced does require that an employee with
unscheduled absences call in before each shift to notify the store of her/his absences. Failure
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to do so for three consecutive shifts results in termination. This is so even where the reason for
the absences remains the same. Kenton violated this policy and was terminated. There is no
evidence of disparate treatment.
Based on the above, I am of the view that the principal reason for Kenton’s termination
was her violation of the no-show/no-call policy. The Respondent has demonstrated by a
preponderance of the evidence that even in the absence of Kenton’s union activity, the
Respondent would have fired her because of her violation of the absentee policy. Accordingly,
the Respondent has met its burden and rebutted the General Counsel’s prima facie case
regarding Kenton’s union activity.
The General Counsel also contends that Kenton was fired because she cooperated with
the Board during the investigation of the unfair labor practice charges by the giving of an
affidavit to the Agency. However, the problem for the General Counsel is that the record is
totally devoid of any evidence that Kenton was in any way involved with the gathering of
evidence during the investigation of these charges.
Counsel for the General Counsel called Kenton as a witness and questioned her at
length during his case in chief. Inexplicably, at no time did he question Kenton about her
alleged cooperation with the Agency during the investigation of these charges. Equally
mystifying is counsel for the General Counsel’s failure to question the two management
witnesses, Taylor and Yousefian, who he called to testify under rule 611(c) of the Federal Rules
of Evidence, about their knowledge of Kenton’s alleged cooperation with the Agency.
Therefore, to what extent, if any, she assisted the Agency in this investigation is totally
unknown.22
Having failed to provide any probative, admissible evidence of Kenton’s alleged
cooperation with the Board, and of the Respondent’s alleged knowledge of that cooperation, the
General Counsel has failed to meet its prima facie burden under Wright Line, supra, and its
progeny, to establish that the Respondent’s termination of Kenton was motivated, at least in
part, by her cooperation with the Agency. However, even assuming, arguendo, said burden
was met by the General Counsel, I conclude that the Respondent has rebutted that burden and
established that even in the absence of protected activity it would have terminated Kenton.
In this decision, I have repeatedly set forth the no-show/no-call absentee policy as
practiced by the Respondent. Under that policy, Kenton failed to call her store each day for
three consecutive shifts to alert the store that she was still incarcerated and unable to work.

22 For the reasons fully explained above in the fact section of this decision, I refused to allow
counsel for the General Counsel to recall Kenton to testify. Further, for the reasons that I set
forth earlier, I rejected a proposed exhibit consisting of a letter from counsel for the General
Counsel to counsel for the Respondent issued during the investigation of these charges. As is
noted above, if this letter was essential to the General Counsel’s case, it would have been
prudent for the case to have been tried by a representative of the General Counsel’s office who
had not authored the letter in question. This letter, which purportedly gave the Respondent’s
counsel notice of Kenton’s cooperation with the Agency, was placed in the rejected exhibit file at
the request of counsel for the General Counsel. (G.C. Rej. Ex.16.) As the document is not in
evidence, I have not considered the substance of the letter in rendering my decision in this
case.
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Kenton was, thereafter, terminated pursuant to that policy. I believe that constitutes the
principal reason for her termination. As compared to other employees similarly situated, it
appears from the record evidence that she was not treated in a disparate fashion. Accordingly, I
conclude that as the Respondent would have terminated Kenton even in the absence of her
protected activity, the Respondent has by a preponderance of the evidence rebutted the
General Counsel’s prima facie case.
Therefore, I find that the General Counsel has failed to establish that the Respondent
discharged Kenton because of either her union activity or because she cooperated with the
Board during the investigatory phase of these unfair labor practice proceedings. Accordingly, I
hereby recommend that complaint paragraph 6(b) be dismissed in its entirety.
D. Summary of the Findings
In summary, I have found that the Respondent violated Section 8(a)(1) of the Act, as
alleged in complaint paragraphs 5(a), (b) (1), (2), and 7. Further, I have recommended that
complaint paragraphs 5(c), (d), 6(a) and (b), and derivatively paragraphs 6(c), (d), 8, and 9 be
dismissed.
Conclusions of Law
1. The Respondent, Fresh & Easy Neighborhood Market Inc., is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union, United Food and Commercial Workers International Union, is a labor
organization within the meaning of Section 2(5) of the Act.
3. By the following acts and conduct the Respondent has violated Section 8(a)(1) of the
Act:
(a) Promulgating and Maintaining until September 3, 2009, in written form in its
employee handbook and on its company intranet site an unlawfully broad no-distribution rule
prohibiting the distribution of literature on its premises for any purpose;
(b) Interrogating its employees about their union activities and sympathies; and
(c) Creating an impression among its employees that their union activities were under
surveillance.
4. The above unfair labor practices affect commerce within the meaning of Section 2(6)
and (7) of the Act.
5. The Respondent has not violated the Act except as set forth above.
Remedy
Having found that the Respondent has engaged in certain unfair labor practices, I find
that it must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
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The Respondent shall be required to post a notice that assures its employees that it will
respect their rights under the Act.23
As the Respondent has already amended its employee handbook and company intranet
site to expunge its unlawfully broad no-distribution rule, it will not be necessary to Order it to do
so.
In his post-hearing brief,24 counsel for the Union requests “extraordinary relief” in the
form of: intranet posting of the notice, posting in each of the Respondent’s stores, that the notice
be signed by the Respondent’s President, that the notice be read in all Respondent’s stores,
and that a broad order issue. However, there is no basis for requiring extraordinary relief in this
case. I have found that the Respondent has committed certain unfair labor practices. While all
unfair labor practices are serious and need to be remedied, the violations of the Act committed
by the Respondent are of the type normally remedied by a standard Board Order and physical
notice posting at the locations involved. There is no evidence that the Respondent is a recidivist
violator of the Act. Further, there is no evidence of record to support counsel’s contention that
such an extraordinary remedy is in any way warranted in this case. Accordingly, I am convinced
that the standard Board Order and physical notice posting is adequate in this case to remedy
the Respondent’s unfair labor practices and to protect the rights of its employees. Therefore, I
hereby deny the request of counsel for the Union for “extraordinary relief.” 25
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended26

23 The unlawful interrogation of employees and the unlawful impression of surveillance given
to employees were committed by the Respondent’s supervisor at its store number 1247 on East
Lake Mead Boulevard, Las Vegas, Nevada. However, as the Union’s organizing campaign,
during which those unfair labor practices were committed, was directed at all the Respondent’s
Las Vegas, Nevada area stores, all those stores constitute the appropriate locations for the
posting of the notice. While the Respondent’s unlawfully broad no-distribution rule was
apparently distributed to employees at each of its stores company-wide through the employee
handbook and intranet site, the record supports the Respondent’s contention that as of
September 3, 2009, it had substantially remedied that violation of the Act by expunging the
offending language and by conducting “team huddles” at each of its stores to so inform its
employees. Therefore, it is not necessary or appropriate to order a company-wide posting of
the notice to employees.
24 Counsel for the Union’s post-hearing submission is entitled “Notice of Appearance and
Joinder in Brief of Counsel for the General Counsel.” It does not independently address the
substantive or legal issues in the case, but merely states that the Union joins in the brief of
counsel for the General Counsel, and summarily requests the “extraordinary relief” noted.
25 It should be noted that at the end of his post-hearing brief, counsel for the General
Counsel states that the Respondent should be ordered to “post a Notice to Employees
substantially in the form of the attached hereto.” However, no notice was attached. Therefore,
it is unknown what specific remedial language the General Counsel considers appropriate for
said notice, and at which specific locations the General Counsel believes notice posting should
occur.
26 If no exceptions are filed as provided by Section 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Section
102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed
waived for all purposes.
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ORDER
The Respondent, Fresh & Easy Neighborhood Market Inc., its officers, agents,
successors, and assigns, shall
1. Cease and desist from:
(a) Promulgating and maintaining in its employee handbook and on its company intranet
site an unlawfully broad no-distribution rule prohibiting the distribution of literature on its
premises for any purpose;
(b) Interrogating its employees about their union activities and sympathies;
(c) Creating an impression among its employees that their union activities were under
surveillance; and
(d) In any like and related manner interfering with, restraining, or coercing its employees
in the exercise of the rights guaranteed to them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act:
(a) Within 14 days after service by the Region, post at each of its Las Vegas, Nevada,
area stores copies of the attached notice marked “Appendix.”27 Copies of the notice, on forms
provided by the Regional Director for Region 28, after being signed by the Respondent’s
authorized representative, shall be posted by the Respondent and maintained for 60
consecutive days in conspicuous places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone out of business or closed any of the
stores involved in these proceedings, the Respondent shall duplicate and mail, at its own
expense, a copy of the notice to all current employees and former employees employed by the
Respondent at any time since April 1, 2009; and
(b) Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting to the steps that
the Respondent has taken to comply.

27 If this Order is enforced by a judgment of a United States court of appeals, the words in
the notice reading “Posted by Order of the National Labor Relations Board” shall read “Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
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IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges
violations of the Act not specifically found.
Dated at Washington, D.C. on February 9, 2010.
____________________
Gregory Z. Meyerson
Administrative Law Judge
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this Notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities
WE WILL NOT do anything that interferes with these rights. Specifically:
WE WILL NOT coercively question you about your support for or activities on behalf of the
United Food and Commercial Workers International Union (the Union), or any other union.
WE WILL NOT make it appear to you that we are watching to see whether you are involved in
efforts or activities in support of the Union, or any other union.
WE WILL NOT maintain in our employee handbook or on our intranet site a no-distribution rule
that prohibits you from distributing literature on our property for any purpose.
WE WILL NOT in any like or related manner interfere with, restrain or coerce you in the exercise
of your rights guaranteed you by Federal labor law.
Fresh & Easy Neighborhood Market Inc.
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
2600 North Central Avenue, Suite 1800
Phoenix, Arizona 85004-3099
Hours: 8:15 a.m. to 4:45 p.m.
602-640-2160.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 602-640-2146.
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